State Board Seeks Swifter Action Against Errant Nurses

by Michael Finnegan, Los Angeles Times, and Charles Ornstein, ProPublica

Managers of the California Board of Registered Nursing are seeking permission to more than triple the size of their enforcement staff and immediately boost licensing fees to speed discipline against errant nurses who may pose a danger to patients.

These and other actions were recommended to state officials Monday in response to an investigation this month by The Times and the nonprofit news organization ProPublica, which found that it takes the nursing board more than three years, on average, to act on complaints of sometimes egregious misconduct.

The recommendations came in an 11-page report submitted at a hearing called by the state Department of Consumer Affairs, which oversees the board. In the report, nursing board managers called the enforcement process "unacceptably long."

On July 13, a day after the first Times/ProPublica article was published, Gov. Arnold Schwarzenegger replaced the majority of board members. The following day, the board's longtime executive officer resigned.

A story on Saturday described how the board failed to take immediate action against nurses who relapsed or even flunked out of its substance abuse recovery program, called diversion.

Some of those expelled were deemed to be "public safety threats" or "public risks" by the board but continued to work for months or years without constraints.

Monday's report by nursing board managers confirmed many of the reporters' findings. It also shed new light on bottlenecks in the disciplinary process.

Each of the board's enforcement analysts is responsible for 400 to 600 cases at any given time, shepherding complaints through the disciplinary process. Board managers want to add 60 positions in part to reduce that caseload to 150 per analyst. New staffers also would be assigned to better track nurses on probation and in diversion, among other tasks.

At a special meeting before the public hearing, the new nursing board named Louise Bailey as its interim executive officer. Bailey was a supervising consultant on nursing education under Ruth Ann Terry, the executive officer who stepped down.

The new board will ultimately decide which reform proposals to pursue, and has scheduled another meeting for August to take up the staff recommendations.

Among the other proposals:

* Seek authority to automatically suspend any nurse who fails out of diversion. Based on a review of about 80 such cases since 2002, The Times and ProPublica reported that it took a median 15 months for the board to file an accusation against noncompliant nurses internally labeled "public safety threats" or "public risks." It took an additional 10 months to impose discipline.

* Seek authority to investigate complaints against nurses while they are in the diversion program instead of waiting for someone to fail before a review starts.

* Hire some investigators within Consumer Affairs to work only with the nursing board. Currently the board shares a pool of fewer than 40 Consumer Affairs field investigators with up to 25 other licensing boards and bureaus.

* Better coordinate with the attorney general's office, which is responsible for drafting administrative charges against nurses. Board managers want the attorney general's office to provide monthly progress reports that can be discussed publicly at board meetings.

* Request administrative hearings sooner for nurses accused of wrongdoing. Currently, to save money, state lawyers often don't ask for a hearing until settlement negotiations break down, said Alfredo Terrazas, a senior assistant attorney general. That can add months to the process.

* Launch efforts to exchange information about possibly wayward nurses with other states, as well as other California departments such as Health Services.

* Seek permission from the Legislature to more easily obtain medical and personnel records during an investigation.

* Examine disciplinary processes used by other states and agencies to see if they work better.
Several of the new members on the nine-seat board said they did not want to comment on the report's recommendations until they could review them.

At the hearing, state officials bemoaned state budget cuts and their effect on enforcement. Even though the board and Consumer Affairs investigators rely on licensing fees for funding, they are not exempt from hiring freezes, furloughs and other cutbacks in the economic crisis.

Daryl Walker, acting chief of the Consumer Affairs' investigation division, said 20% of field investigator positions had been cut since 2000. Some investigators handle up to 100 cases at a time, The Times and ProPublica found.

"When you have a reduction in staff, and you have an increase in workload, there's going to be a problem," Walker said.

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Loose Reins on Nurses in Drug Abuse Program

By Tracy Weber and Charles Ornstein, ProPublica

The morning of her second day at Starpoint Surgery Center in Studio City, nurse Melony Currier was found in the parking lot, passed out in her car.

Once roused, she was escorted to a drug-testing facility to provide a urine sample. In the restroom, she injected an anesthetic she had stolen from the surgery center, according to state records and a Starpoint official.

Currier, a participant in the state's confidential recovery program for impaired nurses, had failed repeatedly -- and spectacularly -- at rehabilitation, the records show.

Over 4 1/2 years, she'd been discovered high in her car at a Hollywood hospital, stolen anesthetics at a San Gabriel Valley hospital, been convicted of burglary after taking more drugs from the same hospital and flunked a drug test.

Yet it wasn't until Currier shot up at the drug-testing facility in September 2006 that she was kicked out of the recovery program. Though her evaluators labeled her a "public risk," the California Board of Registered Nursing didn't impose discipline until 1 1/2 years later, leaving her free her to work without restriction in the interim, the documents show.

As the state begins overhauling regulation of California's 350,000 registered nurses, one of the board's most touted programs stands out as seriously troubled: drug diversion.

For years, nursing board officials have described diversion as a haven where good nurses can kick bad habits -- without losing their licenses or their reputations.

But an investigation by ProPublica and the Los Angeles Times found participants who practiced while intoxicated, stole drugs from the bedridden and falsified records to cover their tracks.

Since its inception in 1985, more than half the nurses who have entered the program haven't completed it. Some who fail at diversion are deemed so incorrigible that the board labels them "public safety threats" (sometimes referred to as "public risks").

Based on a review of all nurses who faced disciplinary action since 2002, The Times and ProPublica identified more than 80 such nurses.

Dire as they sound, the labels do not trigger immediate action or public disclosure. Some nurses that the board considers dangerous continue to treat patients.

"These healthcare professionals may be in the operating room. They may be serving you when you're sick," said George A. Kenna, an addiction researcher at Brown University. "You just don't want that sort of person who's impaired" at the bedside.

Earlier this month, Gov. Arnold Schwarzenegger replaced most of the nursing board and demanded wholesale reform after The Times and ProPublica reported that it took more than three years on average to investigate and discipline nurses. The newly appointed board meets for the first time Sunday and Monday.

Confronted with reporters' findings on the diversion program this week, State and Consumer Services Secretary Fred Aguiar answered nearly every question by saying the program was part of a "broken system." Aguiar, whose agency oversees professional licensing, promised it would be on the new board's agenda.

In a separate interview, Carol Stanford, who has directed the diversion program since 2006, vigorously defended it. She said reporters were focusing too heavily on nurses who failed and not enough on those "saved" by diversion.

"You can pick apart any program," she said. "But what about the good? What about the other side of that story?"

Stanford said the program, which nearly 1,400 nurses have completed since 1985, had a graduation rate of 59% last year.

"Of course, nothing's perfect," she said. "We're working on whatever issues might be going on."
Diversion, embraced in various forms by many regulators, is intended to protect both professionals and the public.

Nurses enroll voluntarily, sometimes after a complaint, sometimes before they land in trouble. They agree to a host of conditions, such as submitting to random drug tests, seeking treatment and pledging not to work without permission.

In return, the board suspends the disciplinary process, keeping secret the nurses' participation in the program. With an annual diversion budget of nearly $3 million, it relies on an outside contractor to run the program day to day.

Because the program is confidential, it is impossible to know how many enrollees relapse or harm patients. But a review of court and regulatory records filed since 2002, as well as interviews with diversion participants, regulators and experts, suggests that dozens of nurses haven't upheld their end of the bargain. And oversight is broadly lacking.

Nurses must promise they won't work until they're sober, yet the board doesn't confiscate their licenses, nor does it ensure that addicts have kept their word.

Some covertly get jobs and steal drugs. The board typically doesn't find out until the nurse gets in trouble again.

Even after the program expels nurses and labels them public safety threats, the board takes a median 15 months to file a public accusation -- the first warning to potential employers and patients of a nurse's troubles. It takes 10 more months to impose discipline, based on the Times/ProPublica review of disciplinary records filed since 2002.

Labor and delivery nurse Tiffany Fahrni, who originally enrolled in the program after stealing and using painkillers, said she was kicked out and labeled a "public risk" in December 2005 because she had worked without permission. But the board didn't file an accusation against her until January 2009.

During that time Fahrni logged at least two arrests on drug-related charges, though she says she did not work as a nurse.

"They terminate you. They say you're a danger to public society . . . then it takes three more years for them to do anything," she said.

The nursing board "should have been all over me like a hawk," Fahrni said. "An addict -- you got to watch them like a baby."

Julianne D'Angelo Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego, said every "public risk" case should be pursued within five days.

Nurses "treat how many dozens of patients?" she said. With such delays, "the chance for harm to a patient is exponentially multiplied."

Drug convictions

In retrospect, Melony Currier may not have been a good candidate for diversion.

She first landed in trouble on Nov. 8, 2001, when she was arrested for stealing Demerol from Providence St. Joseph Medical Center in Burbank. (She later told board investigators that she'd stolen drugs every day for months.)

Nearly two weeks after her arrest, while working at Planned Parenthood in Van Nuys, she was found collapsed in the bathroom, injecting herself with the general anesthetic propofol. Two days after that, she returned to Providence St. Joseph and stole more of the drug, board documents say.

She was later convicted of misdemeanor theft in the Van Nuys case and petty theft and drug possession in the Burbank case.

Currier, then known by the last name Dietrich, was allowed into diversion in February 2002. The program bars nurses who have been convicted of selling drugs or who have caused patient harm or death. Also rejected are those previously disciplined by the board for drug use or mental illness, and those previously kicked out of any diversion program.

None of this applied to Currier. When the program finally expelled her in 2006 -- after the five relapses -- her case entered the clogged pipeline of ordinary complaints. There it was investigated outside public view.

A month after Currier was ejected, according to board documents, she went to Providence St. Joseph, where she'd been arrested five years earlier. Posing as an employee, she said she'd come to collect drugs for outpatient surgery.

When questioned, she "fled," board records say, driving 10 miles to Verdugo Hills Hospital in Glendale. Again posing as an employee, she stole two cases of propofol, according to court and board records.

Two days later, on Oct. 18, 2006, Currier was arrested when she returned to Verdugo Hills for more.

The board filed a public accusation against Currier in March 2007-- nearly 5 1/2 years after the agency first learned of her drug problems.

When the board settled the case in 2008, Currier's license was suspended for a year and she was put on probation. As part of the settlement, she admitted the allegations.

Currier is now free to practice with restrictions. She has declined to comment on her case.
Asked about delays in cases like this, in which a nurse has been deemed a public risk, diversion manager Stanford said: "That nurse still has due process. . . . You cannot go after a registered nurse in this state for falling out of treatment."

In some other states -- Arizona, Texas, North Carolina and Ohio, for instance -- nurses are booted from diversion much more quickly and disciplined sooner, according to interviews with regulators there.

"You can't stay in the program after one relapse, even one," said Julia George, executive director of the North Carolina Board of Nursing.

Leonard LaBella, Verdugo Hills Hospital's chief executive, said he was dumbfounded that the California board had not moved against Currier sooner.

"They might be overwhelmed," he said. "But this one, I think, might have floated to the top."

Risky honor system

At the moment, the main person responsible for protecting the public from a drug-addicted nurse in California is the drug-addicted nurse. It's a risky honor system.

Anette Ekelius, who landed in diversion for allegedly stealing drugs in April 2001, said she knew the rules -- she couldn't work without the board's permission. She also knew there was nothing to stop her. "I thought, 'This is good,' " she recalled. " 'I need to work. I need to pay my bills.' "

Ekelius got an unauthorized job as a temporary nurse at Torrance Memorial Medical Center that September, according to court records. She later pleaded guilty to stealing Demerol on her first -- also her last -- day. The hospital reported her to the board, but she remained in diversion.

Months later she took another job without permission, she said in an interview. At Corona Regional Medical Center, she appeared high and was accused of leaving a critically ill patient unattended, board records say.

Two days later, in February 2002, she was kicked out of diversion. She got another job and stole drugs before the board filed an accusation against her. Her license was revoked in August 2004.

"I was a good nurse, but not when I was using, obviously," said Ekelius, who said she is now sober.

Diversion manager Stanford said she doubted there were more than a handful of such cases but conceded she has no way of knowing for sure.

Doctors program

California regulators well know that diversion programs can fall dangerously short.

In recent years, audits of the state medical board's program found that relapsing doctors weren't always removed from practice, surprise drug tests often weren't surprises and designated monitors sometimes left doctors unwatched.

The medical board closed the 27-year-old program last year.

At legislative hearings on the matter, nursing board officials insisted that their program did not have the same problems and was "very successful."

But the board often defines success as completing the program. By that measure, it has lagged behind the medical board. Historically, about three-fourths of doctors who entered diversion finished it.

And the nursing board does not track nurses once they complete the program. Scott Bertrand, a Claremont nurse anesthetist, relapsed three months after graduating. In August 2005, he was caught injecting himself during a surgery with the painkiller fentanyl, which was intended for the patient. Afterward he admitted using opiates every workday for 10 to 12 weeks, according to his board disciplinary record.

Given a second chance at diversion, he was kicked out, according to his board record. Last year the board suspended his ability to work as a nurse anesthetist for one year and put him on probation.

Reached twice by telephone, Bertrand said he was busy and never called back.

The board almost certainly misses other cases like Bertrand's, addiction experts said.

"I'd want to know what their relapse rate is," said Dean Dabney, a criminal justice expert at Georgia State University, who has written about impaired practitioners. "That's your true indicator."

In this week's interview, Stanford initially stuck to her overall assessment of her diversion program as "a success."

Pressed on the flaws identified by reporters, however, she said officials were taking steps to "tighten it up."

One change in process, she said, is a requirement similar to that in New York -- in which new enrollees in diversion inactivate their licenses. Another would allow the state to investigate complaints even while nurses are in diversion, as the state of Washington does. A third would expedite legal action on cases in which nurses are considered "public safety threats."

"You're raking me over the coals," Stanford said to reporters. "I'm trying to work with the program to enhance it."

A fatal overdose

Chad Matheny's newspaper obituary said he died unexpectedly at his Cathedral City home May 19, 2008.

Just 32, Matheny was described as a loving husband and father, a musician and singer, a dedicated nurse and caregiver. Left unsaid: Matheny's death came after a years-long battle with drugs.

It was a fight the nursing board knew he was losing.

An autopsy found that he had died of an accidental overdose: of powerful painkillers, antidepressants and anti-anxiety drugs. Some of the drugs appeared to have been obtained by phoning prescriptions in under the name of the physician he worked for, the autopsy report said.
Matheny had been booted from the diversion program two years earlier, and the board had labeled him a public threat, saying he had a "complete lack of insight into addiction." But, with disciplinary proceedings pending, he could still work -- and score drugs. He died in bed, beside his wife.

Matheny's mother, Gaytha Minor, said the nursing board failed her son. But she is a veteran nurse herself -- and what most angers her is that the board didn't step in to protect the public.

"How many patients suffered because of my son?"

Maloy Moore, of the Los Angeles Times, contributed to this story.

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Nurses Working Extended Shifts Tired at Work, Sleep Little Are Likely to Drive Drowsy

Hospital staff nurses who work extended hours, work at night, struggle to remain awake at work, or obtain less sleep are more likely to experience a drowsy driving episode, according to a study published in the Dec. 1 issue of the journal Sleep.

The study, authored by Linda Scott, of Grand Valley State University in Grand Rapids, Mich., focused on data that were collected from 895 full-time hospital staff nurses, who completed logbooks on a daily basis for four weeks providing information concerning work hours, sleep duration, drowsy and sleep episodes at work, and drowsy driving occurrences.

According to the results, almost 67 percent of the nurses reported at least one episode of drowsy driving, and three percent reported experiencing drowsy driving following every shift worked. On average, nurses reported experiencing an episode of drowsy driving one out of every four shifts they worked.

Two-hundred eighty-one episodes of motor vehicle crashes/near-motor vehicle crashes were reported during the study period. The majority of these incidents occurred following shifts that exceeded 12.5 hours in duration. The likelihood of a motor vehicle crash/near-motor vehicle crash significantly increased with longer shift durations. The risk for a motor vehicle crash/near-motor vehicle crash almost doubled when driving following shifts that exceeded 12.5 hours.

The risk for a drowsy driving episode doubled when nurses worked 12.5 or more consecutive hours. Working at night also significantly increased the risk for drowsy driving incident. In fact, 79.5 percent of the nurses who worked only night shifts reported at least one episode of drowsy driving.

Almost two-thirds of the nurses reported struggling to stay awake at work at least once during the study period, and 16.9 percent of the nurses actually fell asleep at least one during their work shift. Nurses who struggled to stay awake at work were significantly more likely to report struggling to stay awake driving home after work. In particular, the likelihood of a drowsy driving incident was tripled when nurses experienced episodes of drowsiness at work. The risk for a drowsy driving episode was also increased when nurses reported falling asleep on duty.

Although research on the effects of chronic sleep restriction has revealed that most adults require at least seven to eight hours of sleep each night to avoid developing chronic sleep debt with its accompanying performance deficits, the hospital staff nurses in this study frequently obtained less sleep than this critical threshold. Only 20.8 percent of the participants reported obtaining at least six hours of sleep prior to every shift they worked. The risk for a drowsy driving episode increased by nine percent for each hour of sleep lost.

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